CORAM

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PARTIES

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HERITAGE BANK LIMITED

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OLAM NIGERIA LIMITED

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant/Applicant applied for an order enlarging time within which the Appellant/ Applicant may file its Notice of Appeal against the decision of the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/293/2005 contained in the judgment of Honourable Justice A. I. Chikere on 3rd of February 2006; an order deeming the already filed and served Notice of Appeal as properly filed and served, the appropriate filing fees having been paid; an order of this Honourable Court staying enforcement or further enforcement of the judgment of the court below in Suit No. FHC/ABJ/CS/293/2005 either by way of garnishee proceedings, writ of execution, attachment and sale of the judgment debtor’s assets, writ of delivery, writ of possession, writ of sequestration or any other form of enforcement of a judgment debt pending the hearing and determination of the Appellant/Applicant’s appeal against the judgment. The grounds for the application are set out in the motion paper.

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HELD

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Application Dismissed.

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ISSUES

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Whether the Applicants are entitled to the Orders sought in the instant application? Has given good and substantial reasons for failure to appeal within the prescribed time? Is supported by grounds of appeal which prima facie show good cause why the appeal should be heard?

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RATIONES DECIDENDI

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EXTENSION OF TIME TO APPEAL – CONDITIONS WHICH AN APPLICANT MUST SATISFY IN AN APPLICATION FOR EXTENSION OF TIME TO APPEAL

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“By Section 24(2) of the Court of Appeal Act, 2004, a notice of appeal to the Court of Appeal against a final decision of a court in a civil matter must be given within 3 months of the decision. The judgment sought to be appealed against was given on 3/2/2006, while the application for extension of time to appeal was filed in the court on 25/9/2013, i.e., 7 years after the delivery of judgment. By Section 24(4) of the same Act, the court may extend the period within which to appeal. For an applicant for extension of time to succeed, he must satisfy two conditions. viz:
(i) There must be good and substantial reasons for failure to appeal within the prescribed period, and;
(ii) There must be grounds of appeal which prima facie show good cause why the appeal should be heard. See Order 7 Rule 10(2) of the Court of Appeal Rules 2011. It must be stated that the two conditions are cumulative and the application is not granted as a matter of course or perfunctorily. See Nigerian Laboratory Corporation V. Pacific Merchant Bank Limited (2012) 15 NWLR (1324) 505 and Ubere V. Commissioner Of Police (2005) 6 NWLR (921) 360, 378 – 379″.

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EXTENSION OF TIME TO APPEAL – WHETHER A COURT BOUND TO INQUIRE INTO THE REASON FOR FAILURE TO APPEAL WITHIN THE PRESCRIBED PERIOD WHERE THE PROPOSED GROUNDS OF APPEAL COMPLAINS OF LACK OF JURISDICTION

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“However where the proposed grounds of appeal complain of lack of jurisdiction or competence and it prima facie appears so, it may not be necessary to inquire into the reasons for the delay. See Ukwu V. Bunge (1997) 8 NWLR (518) 527, and Enyibros Foods Processing Company Limited V. National Deposit Insurance Corporation (2007) 9 NWLR (1039) 216, 244 (also reported in (2007) 3 SC (11) 175″.

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EXTENSION OF TIME TO APPEAL – ATTITUDE OF COURT WHERE PROPOSED GROUNDS OF APPEAL ARE SUBSTANTIAL

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“It is also the law that where the proposed grounds of appeal are substantial, they are bound to weigh on the court’s mind in determining its attitude to delay. See Attorney General Of Rivers State V. Ikenta Best Nigerian Ltd (2005) 3 NWLR (911) 1, 19 and Nigeria Industrial Development Bank V. Kolisco (Nig.) Ltd (2010) 1 NWLR (1175) 387, 407″.

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EXTENSION OF TIME TO APPEAL – DUTY OF COURT WHERE THE GROUNDS OF APPEAL ARE SUBSTANTIAL OR RAISE ISSUE OF JURISDICTION

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“Where it is contended that the grounds of appeal raise issue of jurisdiction or that the grounds are substantial, the court is enjoined to consider the grounds to see if they prima facie disclose issue of jurisdiction or substantial grounds. In the case of Ubene V. Commissioner Of Police supra. 377, it was held by this court that the court should not shrink from examining the proposed grounds of appeal”.

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EXERCISE OF JUDICIAL DISCRETION – DUTY OF AN APPLICANT TO PLACE SUFFICIENT MATERIALS BEFORE THE COURT TO EXERCISE ITS DISCRETION IN ITS FAVOUR

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“It is the duty of an applicant lo place sufficient materials before the court to assist the court exercise its discretion in his favour. See University Of Lagos V. Olaniyan (1985) 1 NWLR (1) 156, 169″.

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ENFORCEMENT OF JUDGMENT – TERMS UPON WHICH THE COURT WILL GRANT A STAY OF ENFORCEMENT IN RESPECT OF MONEY JUDGMENT

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“In respect of money judgment, as in this case, the terms upon which the court will grant a stay of enforcement are:
(a) Whether making the applicant to satisfy the judgment would make his financial position such that he could not prosecute the appeal;
(b) Whether it would be difficult to secure the refund of the judgment debt and costs from the respondent if the appeal succeeds. See Pamol (Nig) Limited V. Ilah Agric Project Limited (2003) 8 NWLR (821) 38, 52″.

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ENFORCEMENT OF JUDGMENT – WHAT AN APPLICANT OUGHT TO SHOW FOR COURT GRANT A STAY OF ENFORCEMENT OF JUDGMENT DEBT

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“The applicant ought to go further and demonstrate how its right of appeal would be destroyed by exhibiting its audited report showing its assets and liabilities. See Pamol Nig. Limited V. Ilah Agric Project Limited supra. 54. The applicant, in respect of the assertion that it will be impossible to recover the judgment debt from the respondent, must prove that the respondent is a person of straw. See Sirpi Alusteel Const. Nig Ltd V. Snig Nigeria Limited (2000) 2 NWLR (644) 229, 239″.

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Banking and other Financial Institutions Act|

Companies and Allied Matters Act (CAMA|

Court of Appeal Act, 2004|

Court of Appeal Rules 2011|

Nigerian Deposit Insurance Commission Act|

 

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